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Although not directly addressed in the imminent controversy of Arizona v. United States, issues of education and illegal immigration have confronted the US government for decades. The Development, Relief and Education for Alien Minors Act was first introduced in 2001 by Senator Orrin Hatch and Congressman Chris Cannon. The basic goals of the DREAM Act have remained consistent since 2001, which, when introduced, was to “allow children who have been brought to the United States through no volition of their own the opportunity to fulfill their dreams, to secure a college degree and legal status.” As of 2012, the DREAM Act has yet to pass both the House and the Senate.
Background
The DREAM Act came as a response to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). The IIRIRA restricted post-secondary education to undocumented immigrants by providing that schools could only offer in-state tuition to undocumented state residents if it provided the same in-state tuition to all students, regardless of their state residence. In almost every session of Congress since then, both the House and the Senate have introduced legislation to repeal the IIRIRA provision regarding tuition for undocumented students. Although education is not a fundamental right guaranteed by the US Constitution, the US Supreme Court ruled in Plyler v. Doe that undocumented immigrants have the right to public education because a denial of access would be a violation of the Fourteenth Amendment.
In 2005, the DREAM Act failed again as both a stand-alone bill and as part of a comprehensive immigration bill. In September 2007, Senator Dick Durbin proposed passing the DREAM Act as an amendment to the Department of Defense Authorization Bill of 2008. Although the bill received support from the military, the amended version ultimately failed to pass.
President Obama endorsed the legislation in July 2010. As a senator, President Obama had been a strong supporter of comprehensive immigration reform and stressed the need for bipartisanship:
I’m ready to move forward; the majority of Democrats are ready to move forward; and I believe the majority of Americans are ready to move forward. But the fact is, without bipartisan support, as we had just a few years ago, we cannot solve this problem. Reform that brings accountability to our immigration system cannot pass without Republican votes. That is the political and mathematical reality. The only way to reduce the risk that this effort will again falter because of politics is if members of both parties are willing to take responsibility for solving this problem once and for all.
In January 2012, President Obama urged lawmakers in his State of the Union Address to approve the DREAM Act, which passed the House of Representatives in December 2010 but failed in the Senate by a 55-41 vote. The
Overview of the 2010 DREAM Act
On September 29, 2010 Senators Robert Menendez and Patrick Leahy introduced the Comprehensive Immigration Reform Act of 2010. The bill incorporated previously proposed immigration legislation, including the DREAM Act.
The 2010 DREAM Act provides a path to citizenship for select undocumented immigrant students in three phases, resulting in naturalization after a minimum of 13 years. The first phase is a grant of conditional non-immigrant status for a period of 10 years, subject to termination if a number of conditions are violated, including criminal conduct and other disqualifiers under the Immigrant and Nationality Act (INA). The second phase provides for an adjustment of status to “alien lawfully admitted for permanent residence” after nine years of conditional non-immigrant status, if the immigrant has completed two years at an institution of higher education or two years of military service in good standing. An immigrant may complete naturalization upon fulfillment with all relevant provisions of the INA, and after three years of residence in the US as a legal permanent resident.
The bill limits its retroactive application by requiring that any potential applicant must be under the age of 30 at the time of the bill’s enactment in order to benefit from the legislation. The act also contains many other limitations, including the requirement that the applicant be of “good moral character,” although many of these requirements are left undefined by the text of the act. However, critics have argued that this lack of definition gives the legislation the potential to have too broad of an effect. The legislation’s “waiver” provision is also seen as one of multiple legislative “loopholes” within the act.
In addition to meeting these standards, the act also imposes a number of procedural standards, including a charge of $525 per application and any other necessary fees. Applicants also must submit data to be used in conducting background checks and medical examinations. Thus, supporters of the bill argue, the stringent standards will eliminate any possibility of admitting those who may be a threat to national security.
The DREAM Act’s provision of public education funding for undocumented immigrants has been one of the more controversial aspects of the bill. An alien who is granted conditional non-immigrant status, or lawful permanent resident status, would become eligible for certain limited federal education assistance, including student loan programs and work-study programs.
State Reactions
States have begun implementing their own immigrations laws, in light of the failure to pass federal legislation. In 2001, Texas enacted the first law in response to federal restrictions on undocumented student access to in-state tuition, enabling certain immigrant students to obtain “residency” for the purpose of obtaining eligibility for in-state tuition in the state’s public universities. By 2010, 10 states allowed undocumented students to qualify for in-state tuition. The Supreme Court has rejected challenges to the validity of statutes granting undocumented students residency for the purpose of in-state tuition rates. The Supreme Court of California upheld the state’s version of the legislation finding that because it was not based on formal legal residency it did not violate any federal provision. The US Supreme Court denied certiorari in the case, Martinez v. Regents of the University of California. Maryland and New York also introduced legislation that would permit undocumented immigrants to pay in-state tuition.
Other states, like South Carolina, have passed legislation banning undocumented students from attending its public universities. Similar legislation has been passed in Mississippi, Georgia and Arizona.
JURIST Guest Columnist Victor Romero of Pennsylvania State University Dickinson School of Law argues that these state laws cannot possibly capture the nuances of the federal system:
[W]hile these state laws purport to rely on existing federal immigration laws, they cannot possibly capture the nuance and complexity of such laws, especially as applied to individual cases. A state trespass law based on one’s federal undocumented status may well end up complicating matters rather than simplifying them, given state officers’ unfamiliarity with immigration law. And if every state passes a slightly different trespass law, with different state law enforcement officers struggling to enforce it fairly, we may find ourselves in an even more complicated situation than we have currently.
Although federal law may be necessary to resolve the issue, comprehensive immigration reform has yet to reach the federal level.
